Migration Amendment (Specification of Occupations) Regulations 2017 [F2017L00818] and Migration (IMMI 17/060: Specification of Occupations-Subclass 457 Visa) Instrument 2017 [F2017L00848]-Response required [2017] AUSStaCSDLM 281 (16 August 2017)

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Instrument	Migration Amendment (Specification of Occupations) Regulations 2017 [F2017L00818] Migration (IMMI 17/060: Specification of Occupations—Subclass 457 Visa) Instrument 2017 [F2017L00848]
Purpose	Clarifies the power of the Minister for Immigration and Border Protection to specify, in a legislative instrument, the occupations which may be nominated, and the applicability of those occupations to identified persons, in relation to four visas; and provides that such an instrument may apply to nominations made before or after the commencement date of the instrument Specifies occupations for nominations that relate to a Subclass 457 – Temporary Work (Skilled) Visa
Authorising legislation	Migration Act 1958; Migration Regulations 1994
Department	Immigration and Border Protection
Disallowance	15 sitting days after tabling (tabled Senate 8 August 2017) Notice of motion to disallow currently must be given by 16 October 2017
Scrutiny principle	Standing Order 23(3)(b)

Retrospective effect

Item 8 of the schedule to the Migration Amendment (Specification of Occupations) Regulations 2017 [F2017L00818] (specification regulations) amends the Migration Regulations 1994 (Migration Regulations) to provide that, in relation to a legislative instrument made for the purpose of paragraph 2.72(10)(aa) of the Migration Regulations, an instrument may specify that it applies to nominations made on or after the day the instrument commences, or made and not finally determined before the day the instrument commences, regardless of whether the application was made before, on or after that day.^[1]

The Migration (IMMI 17/060: Specification of Occupations—Subclass 457 Visa) Instrument 2017 [F2017L00848] (IMMI 17/060) is made under paragraph 2.72(10)(aa) of the Migration Regulations, and commenced on 1 July 2017. Section 9 of IMMI 17/060 provides that the instrument will apply in relation to nominations of occupations made and not finalised before 1 July 2017. The ES states, in relation to section 9:

This is regardless of whether, for a nomination in relation to an application for a 457 visa, the application was made before, on or after 1 July 2017. This provision is expressly provided for in Migration Amendment (Specification of Occupations) Regulations 2017 and inserts regulation 6601 to the Regulations. It is noted that the Regulations provide for the refund of a fee in regard to a nomination in 2.73 and an application in 2.12F.

The committee notes that, although IMMI 17/060 is not strictly retrospective,

it prescribes rules for the future based on antecedent facts (that is, the existence of an earlier visa application). As a consequence, it appears that a person whose application for a visa was made on or before 1 July 2017 may now be subject to criteria for the grant of the visa that did not apply at the time of their application.

The committee's usual approach in cases such as this is to regard the instrument as being retrospective in effect and to assess such cases against the requirement to ensure that instruments of delegated legislation do not unduly trespass on personal rights and liberties (scrutiny principle 23(3)(b)). The ESs to the specification regulations and IMMI 17/060 do not address this issue.

The committee requests the advice of the minister in relation to the above.

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^[1] Paragraph 2.72(10)(aa) of the Migration Regulations relates to nominations by standard business sponsors for the purpose of the Subclass 457 (Temporary Work) (Skilled) visa (457 visa).